[Today's Reprise]: The “Right to Life” (This Time, Your Own)

[The following is a substantially reworked portion of an essay which was posted at the former website of my friend, Casey Fahy, in January, 2001, titled, "All Creatures Great and Small."]

While I agree with the Objectivist position on abortion –– namely, that a fetus does not possess “rights” –– there is another point to be made on behalf of keeping abortion legal which I think is consistent with Objectivism, but it’s one not made by Objectivists –– and, for the life of me, I cannot figure out why, since it cuts through much of the fog engulfing current debate on the issue.

Instead of recognizing the mother's proprietary supremacy over her womb, for example, American jurisprudence has gone on a quest for an artificial boundary between the rights of the mother and the fetus, and "viability" has been anointed the bright-line for deciding whether the fetus has “rights.” Despite the technologically variable status of “viability,” it still governs a woman’s legal right to obtain an abortion in America.

By focusing on the status of the fetus, we only play into this logic.

Fetus with rights = case closed. Simple, right?

In my view, this ignores the more basic fact that the womb is the exclusive property of an individual woman, and that she has the right to evict anyone at any time –– even if this means the death of another person.

I do not believe that whether a fetus “has rights” matters in the abortion debate as much as we’ve been lead to believe. To see this, let’s do a thought-experiment.

Assume for a moment that an adult with a kidney disease needs a transplant to survive —– other treatments won’t work. The ailing person has a living parent –– let’s say, his mother –– with a compatible kidney. No other compatible kidney will be available for over a month. Even assuming, for purposes of our thought-experiment, that loaning her son one of her kidneys would involve little or no risk to her health, should the mother have a legal obligation to let her son borrow one of her kidneys for one month?

Remember, the son is a living, adult person —– there is no debate about whether he possesses every right in the book, unlike a gestating fetus. Also, for the son, the situation is life or death —– he will die if he cannot borrow mom’s kidney for that month. Can her son, or the state on behalf of her son, compel her to produce the kidney? After all, it’s only for 30 days, the risk to her is slight, or nonexistent –– and, after all, she did have sex “knowing the potential consequences,” as a conservative might say, and, indeed, in our example, she even chose to have a child.

Obviously, to require that the mother loan her organ to the ailing son would be a violation of her rights. If the mother’s rights exist at all, if she can say things others disagree with by right, if sex with her without her consent is rape, etc., then, surely, her kidney cannot be taken without her consent, even temporarily. She is the sovereign of her life and of her body. If she is not the slave of others, she must have the right to say “no,” even if some might disapprove of her choice morally.

Why, then, does a fetus have the right to “borrow” its mother’s womb for nine months? That it might have rights is beside the point. Its right to life cannot come at the expense of another person’s rights —– whether it’s 30 years old or a fourteen week fetus ––– whether its life depends on it or not.

This line of argumentation, focusing on the woman’s right to her own body, and not the possibility of any “rights” of the fetus, is extremely clarifying and avoids many of the arguments of the anti-abortion lobby –– it avoids altogether the question of “when life begins” –– and so much more that follows from that debate.

Advocates of “reproductive choice” frequently remind us that it is absurd to recognize the rights of a just-fertilized zygote and not those of the egg and sperm that existed a moment earlier. Conservatives then simply point out that it is equally absurd to recognize the rights of the newly born and not those of the same entity an hour before delivery. For them, the “partial-birth abortion” issue is just the thin end of their wedge, this much is becoming increasingly clear.

However this may be, it is still morally repugnant to impose the decision to be a parent against someone’s will –– otherwise, we would simply compel the distribution of orphans to those who have resources and that would be that. The obligations of parent to child are legally binding precisely because the parent unilaterally chose to bear a human being that cannot yet care for itself. It is the fact that a mother has borne a living child that is the basis of her obligation, not the child’s rights, in any event. Her choice to wait until a living person will be born does not confer any rights on the child, merely an obligation on her part to care for the child.

Conservatives argue that since she can give the child up to adoption, she isn’t being forced to be a mother, but simply to bear the child. Weighed against the death of the fetus, the choice is clear, abortion is wrong. But, of course, this gets it backwards. We engage in no such “calculation” when it comes to fundamental rights. The comparative harm to society of letting Nazis and communists publish books is never weighed against their freedom of speech, any more than the existence of starving children justifies making other people their slaves.

Conservatives themselves do not believe that a homeless person can just walk into someone’s home at will and raid the fridge –– even if the homeowner had been so careless as to leave the front door unlocked. They’d be the first to call the police and have the person evicted. But, for the very same reason, a mother must be free to evict a fetus. The extreme “need” of the fetus is not the issue; the issue is the right of the homeowner.

It may be objected that it is unfair to compare a fetus to a trespassing vagrant. After all, the woman played a role in putting the fetus there. This ignores not only rape but faulty birth control and accidents. (This also points to the contradiction some conservatives face when they make exceptions in their proposals for rape and incest.) But whether the woman even knows enough to take birth control is beside the point. Her womb, like her kidney, is her own property to the prejudice of even those who wander onto it through her own negligence in not building a fence. Imagine the world before reliable “fences” for the womb could be built (!)

Also, a fetus doesn’t choose to trespass, like the vagrant. But changing the trespasser into a wild animal –– or tumbleweed –– doesn’t change the homeowner’s right to remove it, does it?

Some have argued that pregnancy is more like two people on a lifeboat at sea. Neither one, it is argued, has the moral or legal right to throw the other off the boat. Whoever owns the boat, it is murder. This analogy quite intentionally, and wrongly, separates the boat from the people involved, but, of course, the pregnant woman is the lifeboat. If we must be out at sea, the analogy would be more like the one person carrying the other on her shoulders while trying to tread water herself (similar to the economic and/or health situations of many pregnant women). Even if the hanger-on at sea was originally invited, she may at any later point recant and shrug.

Some may object to the use of such analogies, especially those involving property rights. They, like most analogies, are imprecise comparisons. But, surely, a woman’s right to her body is at least as inviolable as her right to her castle.

This argument does not mean that we can simply bypass the issue of alleged “fetal rights,” for it does not address certain important aspects of the debate, such as the ethics of fetal tissue research. It is only because a fetus has no rights that there is no “rights” argument justifying the banning of fetal tissue research. This argument does not adequately address the wider question of the ethics of abortion, either.

However, on the subject of a woman’s right to an abortion, it is her right to her body parts that should constitute the legal rationale and only “bright-line” on the subject of the use of her womb.

[The original edition of this essay included citation to the similar arguments of others, such as libertarian Walter Block. Since the publication of the original, I have also noted with interest that more feminists are making use of this approach.]

For opinion sake only, I would like to introduce one more spoke for the wheel.

With regards to the debate on abortion, do men actually have the right to enter into any reasoning? Is it, afterall said and done, a womans body that is the catalyst and surely the arguement lies within?

Is male participation in this debate akin to the subjection of muslim women (in particular) and indeed religion as a whole?

Women are the breeders and in many ways are still treated as stock units of society.

"Integrates" is a better word here, but "constructs" isn't necessarily wrong. That is, you can construct a philosophy out of principles that aren't integrated or that are, but try to integrate principles some of which are invalid and you will have problems. Integration is part of the validation of the whole. So I have to give Penelope at least 70% to my 30%. I learned something, maybe others did too. This makes "integrates" a sub-category of "constructs." I don't think we can refine this business further.

Normally, I would not even enter into this hair-splitting talk with non-philosophical "normal folk." BUT [underscore BUT] when it comes to people who are seemingly well-versed in philosophy, my red flag goes up with their usage of certain words (especially if they are well spoken and have a good grip on language; I tend to be cautious, yes).

For example--is it a philosophy student I'm speaking to OR Joe Blow when he uses the word "Egoist"? Now how about a philosophy major who says, "Hey, Victor is an EGOTIST." I treat the occasion as the context calls for. When Joe Blow uses the word 'egostist' it might be an innocent error. (However, you need to watch to academics!

I couldn't help but think that Brant knew what the word 'construct' connotes—the subjectivism it can offer up.

You said: “Not that any of this helps, because Rand defines concepts differently. But in common usage, they appear to be synonyms. Integration is the method of forming concepts/constructs.”

Yes, like I say, be aware of philosophical definitions esp. when speaking to academics or else, at least, those who are ‘in the know’ regarding philosophy.

**

Dictionary.com

CONNOTES: To suggest or imply in addition to literal meaning: “The term ‘liberal arts’ connotes a certain elevation above utilitarian concerns” (George F. Will). See Usage Note at denote.
To have as a related or attendant condition: For a political leader, hesitation is apt to connote weakness.

“Construct” [connotes] an arbitrary and subjective approach to philosophy, that’s all. Pretty much the way that, say, Immanuel Kant ‘constructed’ a philosophy. However, I have no conclusive argument to make that it is an anti-concept.

Penelope asked: "I don't follow you. Why in Allah's name throw the word "construct" in there? What facts give rise to the need for that concept? What does it add to "Philosophy is an integrated set of principles"?

Yes, why use the word? It’s analogous to the pantheist who clings to the word “god” when he describes it as “all of nature.” Why not simply speak of nature--instead of muddling the cognitive landscape with an other word--esp. when no facts of reality give rise to the need of it?

Something put together, constructed. When you objected to it I had the impression you had something much narrower in mind appertaining specifically to philosophy.

But a proper philosophy isn't "constructed." It's discovered...it's an integration of principles derived from reality. "Construct" is almost always used by Marxists and their ilk to denote the subjective and distorting lens through which we interpret the world...now it seems to me it's actually an anti-concept used to destroy the concept "knowledge".

Rights are epistemological (philosophical) constructs that have two existential (metaphysical) referents: (1) the human organism (its nature and needs)--hence "natural rights" and (2) legal codification which then tends to become self-referential ("under the law" or "by the law") because mediocre judges don't deal with philosophy save unselfconsciously their own.

While rights are a need they aren't in the person. They must be recognized morally (epistemologically) first in common then codified law.

There is no right to violate a right without the acceptance of a contradiction. If the law says A and the philosophy says B and the rights need of the person is C, Houston has a problem.

Rights are there to be used, implicit even in the basic right to life. If someone doesn't use a right he de facto, not de jure, doesn't have that right except in that it's in his rights' bank account and nobody has the right to the contents of that account other than its owner. He gets it by exercising it. If you breathe you are exercising your right to life. Please note that some of this is semantically put. One can say the same thing differently.

So, when does a baby get his right to life? When he can exist on his own outside his mother's womb. The right to an abortion is not necessarily the right to kill the fetus, but that's what it amounts to for most of the pregnancy.

The imprecision of the "eviction" analogy, like the life-boat comparison, is its separation of the "home" from the persons involved. See, the vagrant actually can be evicted without killing him. The fetus may not be so fortunate. This does not alter the right of "eviction" in any way, however, does it?

What if the trespassing vagrant really will starve without help? Does this imply any duty to care for him by any (or all) home-owner(?

Thus, the key is when the mother's positive obligation to care for the fetus kicks in. Once "evicted," does the mother (or the attending physicians or the state) have to take any steps to preserve the life of the fetus? In general, there is no duty to care for another person, and a mother's obligation is predicated on her consent to undertake that responsibility, manifested in giving birth, right?

Linz - you write, "the right to life begins when the biological apparatus for the distinctive human faculty, reason, is in place (though obviously not yet being exercised)...."

There are three problems here. The first is existential. "Life proper to a human" means life by means of rational action. Rights, qua conditions of life qua man, can't exists before rational action.

The second is epistemological. How could one demonstrate the existence of a capacity for rational action, except by observing evidence of rational action itself?

The third is biological: we know that the "apparatus" of every biological faculty develops gradually by means of the exercise of that faculty: the development of muscles requires movement, the development of speech requires babbling and so on. Why would the faculty of reason be different? The biological fact is that no biological "apparatus" develops to completion without some activation of its functions.

Any one of the above problems with that claim is enough to render it incoherent. I'm sure that you can do better.

Either a woman has a right to an abortion or she doesn't. When that right enters a grey area concerns the viability of a fetus removed from the womb which specifically appertains to its ability to breathe. The right to an abortion doesn't necessarily mean the killing of a viable fetus as a consequence of the procedure.

The reason the pro-lifers claim rights begin at conception is that they know they can't let the woman have any right to an abortion whatsoever. If they do, their case crumbles.

But rights can't conflict. That's in the nature of what they are. But for the same reason, the fetus cannot have rights until it is born. Rights protect the ability of two rational beings to go their separate ways. If they can't do that, rights can't apply. And thank goodness for that!

I agree with you, James - and I've argued that view myself in years past (usually on HPO) when it's come up.

The only credible argument in response to the "trespasser" analogy is the "invited guest", i.e. that the woman is responsible for the fetus being there - and of course that the fetus didn't choose to be there.

I've tended to the view (and I deliberately use weasel-words because I'm honestly not sure on this) that the fetus becomes "human" when it's hotwired for conceptualisation (around the beginning of the third trimester) & shouldn't be messed with after that. It's then a guest in one's house (womb). You say:

... the womb is the exclusive property of an individual woman, and that she has the right to evict anyone at any time –– even if this means the death of another person.

But none of us has the right to kill a person in the process of evicting him, unless met with violence, surely?

I take the view that the right to life begins when the biological apparatus for the distinctive human faculty, reason, is in place (though obviously not yet being exercised) and the rights to liberty and the pursuit of happiness (as one sees fit, as opposed to what one's parents see fit) kick in when one is self-sufficient.

Thanks for the thought-provoking essay, in any event, on one of the "perennials."

An important benefit of debating public controversies is education. The standard Objectivist argument (that rights are necessary pre-conditions for a human to live as a rational being, and therefore an attempt to apply rights to a fetus, or any other entity that is not capable of rational action, is a category error) is likely to lead to questions about the grounding of Objectivist ethics, making use of the debate to educate the listener. Of course other arguments (such as yours above) may also lead to the same conclusion about a woman's right to abortion, but they just don't have the same educational value.

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